WILLIAM H. ORRICK, District Judge.
Petitioner Maurice Boyette, a condemned prisoner at California's San Quentin State Prison, has filed a habeas petition containing twenty-seven claims. Respondent filed a motion to dismiss all or part of eleven of those claims for failure to exhaust. (ECF Doc. No. 36) The parties narrowed their disagreement to seven of the claims and agree to defer discussion of the appropriateness of a stay under Rhines v. Weber, 544 U.S. 269 (2005) as an alternative to the dismissal of unexhausted claims until after I make a determination regarding exhaustion. For the reasons discussed below, I find that claims 1, 3, 9, 10, 23, 24 and 27 are unexhausted in whole or in part.
In 1993, petitioner was convicted in Alameda County Superior Court of the first-degree murders of Gary Carter and Annette Devallier. Evidence at trial established that petitioner was a bodyguard for a drug dealer named Antoine Johnson. Johnson learned that Carter and Devallier had allegedly stolen rock cocaine and cash from a house Johnson maintained. Petitioner accompanied Johnson to the house, confronted Carter and Devallier and in the ensuing melee, shot and killed both at pointblank range. The jury found true the special circumstance allegation that petitioner committed a multiple murder, and sustained the enhancement allegation that he used a firearm in the commission of the murders. Petitioner was also convicted of being a felon in possession of a firearm. On March 25, 1993, the jury sentenced him to death. Petitioner filed a state habeas petition on October 19, 2000. (Case No. S092356, AG009711-AG10273)
The California Supreme Court affirmed petitioner's conviction and death sentence on direct appeal. People v. Boyette, 29 Cal.4th 381, 403 (2002), modified (Feb. 11, 2003), rehearing denied (Feb. 11, 2003).
On November 16, 2006, the California Supreme Court issued an Order to Show Cause limited to petitioner's claims for relief based on juror bias and misconduct. (AG022329) An evidentiary hearing with respect to these claims was held in Alameda County Superior Court on November 15-17, 2010. The referee presiding over the hearing issued his report to the California Supreme Court on December 1, 2010.
On May 30, 2013, the California Supreme Court adopted the referee's findings and ruled against petitioner on his jury bias and misconduct claims. On August 28, 2013, the California Supreme Court filed an order denying the remainder of the claims in petitioner's state habeas petition. Petitioner filed a federal habeas petition on January 5, 2015. (ECF Doc. No. 23)
On March 23, 2015, respondent filed a motion to dismiss petitioner's habeas petition for failure to exhaust claims. (ECF Doc. No. 36) In his motion, respondent asserts that claims 1, 3, 5, 6, 8, 9, 10, 17, 23, 24, 25 and 27 are unexhausted in whole or in part, and claim 25 is not ripe for review.
On June 15, 2015, petitioner filed an opposition conceding that claims 1, 10 and 23 are "arguably unexhausted", but disputing the exhaustion status of the remainder of the claims addressed in respondent's motion. (ECF Doc. No. 39) Petitioner agrees that claim 25 is not ripe for review. He further contends that the motion to dismiss should be denied as his petition may be stayed under Rhines, 544 U.S. 269, while he exhausts claims in state court. Petitioner requests however, that the Court determine the exhaustion status of the disputed claims before considering the appropriateness of a stay.
In a reply filed on July 15, 2015, respondent concedes that claims 5, 6, 8 and 17 are exhausted, leaving in dispute the exhaustion status of claims 1, 3, 9, 10, 23, 24 and 27.
On August 4, 2015, petitioner filed a statement requesting a hearing on the exhaustion issues raised in the parties' briefs. (ECF Doc. No. 44)
A federal court may not grant habeas relief until the petitioner has exhausted available state remedies with respect to each claim. 28 U.S.C. §2254(b); Picard v. Connor, 404 U.S. 270 (1971). The exhaustion doctrine rests on principles of comity and federalism. Rose v. Lundy, 455 U.S. 509, 515 (1982). Exhaustion is required to: (1) protect the state court's role in the enforcement of federal law; (2) prevent disruption of state court proceedings; and (3) reduce piecemeal litigation. Id. at 518-20.
A federal constitutional claim is exhausted when it has been "fairly presented" to the highest state court and that court has had a meaningful opportunity to apply controlling legal principles to the facts underlying the claim. Picard, 404 U.S. at 276-77; Anderson v. Harless, 459 U.S. 4, 7 (1982); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986). A claim has been "fairly presented" if the petitioner described in state court both the legal theories and the operative facts on which he bases the claim. Picard, 404 U.S. at 277-78; see Crotts v. Smith, 73 F.3d 861, 865 (9th Cir. 1995).
To fairly present the legal theory of a claim, a petitioner must alert the state court that he is asserting a federal constitutional claim, either by citing the constitutional provision on which he relies or otherwise advising the court of the claim's federal basis. Duncan v. Henry, 513 U.S. 364, 365-66 (1995); Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996).
The factual basis of a claim has been fairly presented as long as the facts alleged in federal court do not fundamentally alter the nature of the claim, Vasquez v. Hillery, 474 U.S. 254, 260 (1986); Chacon v. Wood, 36 F.3d 1459, 1468 (9th Cir. 1994)), place the claim in a "significantly different and stronger evidentiary posture" than it was when the state courts considered it, or "substantially improve[] the evidentiary basis" of the claim. Aiken v. Spalding, 841 F.2d 881, 883 (9th Cir. 1988).
Generally, a petitioner may add factual materials supportive of those already in the record without fundamentally altering his claim and rendering it unexhausted. See Vasquez, 474 U.S. at 260 (statistical analyses of facts already in record do not render claim unexhausted); see also Chacon, 36 F.3d at 1468 (factual basis of claim that interpreter mistranslated guilty plea proceedings was fairly presented where the state court understood accuracy of translation to be at issue). However, where the new facts strengthen the claim by contradicting evidence the state court already considered, the new factual materials must be presented to the state court. See Aiken, 841 F.2d at 883-84 & n.3 (new evidence consisting of decibel level studies of tape of petitioner's confession, which conflicted with evidence state court had considered, substantially improved evidentiary posture of claim and required exhaustion).
In claim 1, petitioner alleges that the prosecution's discriminatory exercise of peremptory challenges to exclude African American women from the jury violated his constitutional rights. Respondent contends that this claim is unexhausted to the extent that it includes a new subclaim alleging that the unconstitutional exclusion of African American jurors was part of a pattern and practice of the Alameda County District Attorney's Office at the time of petitioner's trial. (ECF Doc. No. 23 at 109) Petitioner concedes that this claim is unexhausted.
In claim 3, petitioner alleges that his conviction and death sentence must be vacated because pervasive juror bias and misconduct infected the guilt and penalty phases of his trial. Respondent contends that a portion of this claim, which he characterizes as an ineffective assistance of counsel subclaim premised on state habeas counsel's failure to object to the referee's evidentiary limitation at the evidentiary hearing in state court, is unexhausted. Respondent cites to paragraphs 111-112 and 114 of claim 3, (ECF Doc. No. 23 at 164-66), as compared to their equivalents in his state habeas petition and petitioner's Exceptions to the Referee's Report.
As a threshold matter, the subclaim cited by respondent does not appear to raise allegations of ineffective assistance of counsel. Rather, the subclaim at issue appears to argue that petitioner's counsel did, in fact, preserve the evidentiary objection for review, and that petitioner is therefore entitled to a review of the merits of his evidentiary claim. (ECF Doc. No. 23 at 165)
In any event, the above-mentioned subclaim does not appear to have a counterpart in the materials petitioner presented to the Supreme Court of California. See Petitioner's State Habeas Petition, AG009797-AG009850; Petitioner's Exceptions to Referee's Report, AG022759-AG022802. This subclaim is therefore unexhausted.
In claim 9, petitioner alleges that his statement to the police was involuntary and its admission violated his constitutional rights. Respondent alleges that this claim is unexhausted in part. I will address each allegedly unexhausted subclaim in turn:
For the abovementioned reasons, claim 9, with the exception of its ineffective assistance of appellate counsel subclaim, is exhausted.
In claim 10, petitioner alleges that the trial court violated his constitutional rights when it improperly restricted evidence proffered by the defense to corroborate petitioner's testimony. Respondent alleges that this claim is unexhausted in part. I will address each allegedly unexhausted subclaim in turn:
For the above-mentioned reasons, claim 10, with the exception of its ineffective assistance of trial counsel subclaim, is exhausted.
In claim 23, petitioner alleges that California's death penalty system is unconstitutional because lengthy and unpredictable delays in the implementation of death sentences have resulted in an arbitrary and unfair capital punishment system violative of the Eighth Amendment. Respondent argues that this claim is entirely unexhausted in that it relies on new evidence and case law that significantly alter the arguments stated in petitioner's state habeas petition. Petitioner contends that this claim should be excused from the exhaustion requirement for the reasons cited by the Hon. Cormac J. Carney in Jones v. Chappell, 31 F.Supp.3d 1050 (C.D. Cal. 2014), namely that exhaustion would be futile as it would require petitioner to have his claim resolved by the same system he claims to be dysfunctional.
A review of the record confirms respondent's contentions. Claim 23 states facts and legal theories that were not presented in state court. Compare ECF Doc. No. 23 at 605-611 with AG010239-010245. Moreover, petitioner's reliance on Jones is misplaced. The Ninth Circuit recently reversed Jones on the grounds that relief on Jones' claim alleging the unconstitutionality of California's death penalty scheme due to excessive delay is precluded by Teague v. Lane, 489 U.S. 288 (1989), which bars federal courts from applying new rules of constitutional criminal procedure to cases on collateral review. See Jones v. Davis, 806 F.3d 538 (9th Cir. 2015). Although the majority opinion in Jones did not decide whether Jones' claim was exhausted or excused from the exhaustion requirement, the Hon. Paul Watford in concurrence opined that it was not exhausted. Id. at 553. Petitioner fails to cite controlling authority establishing that claim 24 need not be exhausted.
For the above-mentioned reasons, claim 23 is unexhausted.
In claim 24, petitioner alleges that execution following a lengthy confinement under a sentence of death would constitute cruel and unusual punishment violative of his constitutional rights and international law. Respondent contends that petitioner's subclaim outlining the privations attendant to life on death row seeks relief based on conditions of confinement and therefore is not cognizable on habeas. Petitioner counters that his description of conditions of confinement simply aims to assist me in my consideration of his claim.
To the extent that petitioner's subclaim provides additional facts bolstering his allegation that his prolonged confinement under a sentence of death violates his constitutional rights, these allegations have not been presented in state court. Compare ECF Doc. No. 23 at 613-14 with AG010239-AG010245. Accordingly, this claim is partially unexhausted.
In claim 27, petitioner alleges that the cumulative effect of the errors and constitutional violations alleged in his petition violate his constitutional rights and require that his conviction and death sentence be vacated. Claim 27 incorporates by reference all other claims set forth in the petition. Respondent alleges that to the extent that this claim includes unexhausted allegations, it is unexhausted. Respondent is correct. To the extent that claim 27 incorporates unexhausted claims identified in this Order, it is partially unexhausted.
For the above-mentioned reasons, I find and order:
